U.S. Supreme Court Holds that Large New and Rebuilt Industrial Emitters Must Use Best Available Controls for Climate Pollution When Discharging Other Major Pollutants

The U.S. Supreme Court ruled
7-to-2 today, in Utility Air Regulatory Group v. EPA (No. 12-1146, et
al), that the U.S. Environmental Protection Agency (EPA)
permissibly read the Clean Air Act to require installation of the best
available control technology for large new or rebuilt industrial pollution
sources of greenhouse gases that are sources of other major air
pollutants.

This is now the third decision in which the Court has affirmed the
application of the Clean Air Act to climate pollution.

A 5-to-4 majority of the court also held that EPA must narrow its
permit program to avoid applying the permitting program to many smaller sources
that EPA itself had concluded would pose serious practical problems and yield
relatively small pollution control benefits.

“EPA’s foundational authority under the Clean Air Act to protect
Americans’ health from the clear and present danger of climate pollution is
rock solid,” said Vickie Patton, General Counsel for Environmental Defense
Fund. “Recognizing EPA’s authority to protect public health from climate
pollution, the high Court today clarified that the best pollution controls for
greenhouse gases apply to new and rebuilt industrial sources that are large
emitters of other major air pollutants.”

More Information about Clean Air Act Permit Requirements for Large
Industrial Emitters

Today’s decision stemmed from years of litigation in which
polluters challenged almost every aspect of EPA’s first generation climate
protections including: EPA’s science-based finding that six greenhouse gases endanger
human health and the well-being of current and future generations; EPA’s limits
on the climate pollution from passenger vehicles (“clean car” standards); and
the requirement that industrial emitters obtain permits when constructed or
rebuilt to deploy modern cost-effective solutions to reduce their climate
pollution.

In October 2013, the Supreme Court declined to hear the vast
majority of those challenges, but did agree to review one narrow question on
whether EPA’s regulation of greenhouse gas emissions from new motor vehicles
triggered permitting requirements under the Clean Air Act for large industrial
sources of greenhouse gases.

The requirement for large industrial sources to obtain greenhouse
gas construction permits became operative on January 2, 2011 when climate
pollution became subject to regulation under the Clean Cars
standards.

The Supreme Court has long recognized EPA’s clear authority to
regulate carbon pollution from new and existing coal-fired power plants under
this – separate – new source performance standards program.

Indeed, during the February 24, 2014 oral argument in this very
case, industry attorney Peter Keisler stated, in response to questioning from
Justice Ruth Bader Ginsburg, that EPA has clear authority to address climate
pollution from power plants and industrial sources under the new source
performance standards (section 111):

“I think most critically, Your Honor, it includes the new source
performance standards program of Section 111 that this Court discussed in
Connecticut v. AEP. And this is a very important point, because this case is
not about whether EPA can regulate greenhouse gases from stationary sources.
This Court held that it could under this program in Section 11 [sic].”

The Supreme Court has twice affirmed EPA’s authority to address
climate pollution under our nation’s clean air laws – in Massachusetts v. EPA (2007) and American Electric Power v. Connecticut (2011). In
the 2011 AEP case, Keisler had a similar
colloquy with Justice Ginsburg in which he recognized that there could not be
“a more specific example of Congress having addressed the problem” of
greenhouse gases. Consistent with Keisler’s acknowledgement, Justice
Ginsburg authored the 2011 opinion of the Court in AEP, holding that the Clean Air Act “speaks
directly” to emissions of carbon dioxide from power plants.

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